Judiciary Power and Practice - War and the courts

While it is generally accepted that the Constitution grants war powers to
the federal government, and the courts have never seriously questioned
this, the source and division of war powers has been much disputed.
Reasons for judicial acceptance of federal war powers include: that the
power to declare war carries with it the power to conduct war (
McCulloch
v.
Maryland
); that the power to wage war derives from a country's sovereignty
and is not dependent on the enumerated powers of the Constitution (
United States
v.
Curtiss-Wright Export Corporations,
1936); and that the power to wage war comes from the expressed powers as
well as the necessary and proper clause. With such acceptance of the
federal government's central role in war (and foreign policy
generally), the Supreme Court has been reluctant to place any limits on
the powers Congress or the president devise to conduct it. The courts have
declared some statutes created during wartime unconstitutional, but in
nearly every case it has been done on grounds that the law abused a power
other than war power, and the decision has been rendered only after combat
has ceased.

It is perhaps surprising that Congress has declared war on only five
occasions: the War of 1812; the Mexican War; the Spanish-American War,
World War I, and World War II. When U.S. involvement in other
international conflicts was challenged in the courts, the judiciary has
ruled that declaration is not required. For example, in
Bas
v.
Tingy
(1800), the Supreme Court held that Congress need not declare full-scale
war and could engage in a limited naval conflict with France. During the
latter half of the twentieth century the United States engaged in numerous
military conflicts without declaring war, the most controversial being the
Vietnam War. Lower courts ruled that the absence of a formal declaration
of war in Vietnam raised political questions not resolvable in the courts.
The Supreme Court refused all appeals to review the lower court rulings,
although not all its denials were unanimously agreed (for example,
Mora
v.
McNamara,
1967).

The courts have also rebuffed state challenges to federal government
war-related actions. In 1990 the Supreme Court upheld a law in which
Congress eliminated the requirement that governors consent before their
states' National Guard units are called up for deployment (
Perpich
v.
Department of Defense,
1990). Specifically, Minnesota objected to National Guard units being
sent to Honduras for joint exercises with that country's military.
The issue was between states' control over the National Guard under
the Constitution's militia clauses and congressional authority to
provide trained forces. The unanimous decision in
Perpich
further strengthened the power of the federal government in military
affairs.

While there has been little disagreement on the federal
government's authority to go to war, the appropriate roles of
Congress and the president have sparked considerable debate. Article 2,
Section 2 of the Constitution begins: "The President shall be
Commander in Chief of the Army and Navy of the United States, and of the
Militia of the several States, when called into the actual Service of the
United States." This sentence has been the source of controversy
between the three branches of government. Of particular concern are the
circumstances under which the president can authorize the use of force
abroad and how and whether Congress should be involved in making such
decisions. The role of the judiciary in such matters seems crucial, but
the courts have been unwilling participants in these debates.

While such abandonment of judicial review is questionable, there are a
series of historical precedents to support the courts' approach. In
1795, Congress authorized the president to call out the militia of any
state to quell resistance to the law. The Court sanctioned the
president's discretion to determine when an emergency existed and
subsequent calling of state militia. Several New England states challenged
that law during the War of 1812, but the Supreme Court upheld the
delegation of congressional authority as a limited power in
Martin
v.
Mott
(1827). In subsequent decades the Court and Congress regarded the
president's war power as primarily military in nature. The Supreme
Court has never opposed the president's authority as commander in
chief to deploy forces abroad. However, during most of the nineteenth
century Congress provided the initiative in foreign policy. When
presidents in peacetime sought expansionist policies that threatened war,
Congress stopped them.

Supreme Court decisions during the Civil War played a central role in
shaping the courts' approach to war powers. Congress was in recess
when hostilities broke out, so President Abraham Lincoln declared a
blockade of Confederate ports, issued a proclamation increasing the size
of the army and navy, ordered new naval ships, and requested funds from
the Treasury to cover military expenditures. When Congress returned it
adopted a resolution that approved the president's actions.
However, owners of vessels seized during the blockade and sold as prizes
brought suit, arguing that no war had been declared between the North and
the South. The Supreme Court ruled in the
Prize Cases
(1863) that President Lincoln's actions in the early weeks of the
war were constitutional, because the threat to the nation justified the
broadest range of authority in the commander in chief.

Despite a narrow 5–4 ruling, the
Prize Cases
bolstered the powers of the presidency and shaped the tendency of the
judiciary to abstain from rulings that would curb war powers. The Supreme
Court's decisions, which interpreted broadly the powers of the
president as commander in chief, marked the beginning of expansionary
presidential actions during war. The national emergency of civil war
required that the executive be able to exercise powers that might not be
permitted during peacetime. Thus, Lincoln's decisions to declare
the existence of a rebellion, call out state militia to suppress it,
blockade southern ports, increase the size of the army and navy, and spend
federal money on the war effort were not rebuked by the courts. Even the
Emancipation Proclamation was issued under Lincoln's authority as
commander in chief. Only Lincoln's suspension of habeas corpus in
certain parts of the country earned a censure from the Supreme Court.

The world wars of the twentieth century provided opportunities for
Presidents Woodrow Wilson and Franklin Roosevelt to push the
constitutional envelope. As the United States entered World War I in 1917,
President Wilson sought and obtained from Congress broad delegations of
power to prepare for war and to mobilize the country. He used these powers
to manage the country's economy, creating war management and
production boards (coordinated by the Council of National Defense) to
coordinate production and supply. His actions included taking over mines
and factories, fixing prices, taking over the transportation and
communications networks, and managing the production and distribution of
food. Because the president had obtained prior congressional approval for
these actions, there were no legal challenges to Wilson's authority
during the war.

In a novel interpretation of the economic turmoil of the 1930s, President
Roosevelt equated the challenge of the Great Depression to war. He sought
wide executive-branch powers to address the economic crisis, but the
Supreme Court was reluctant to sanction such authority during peacetime.
However, once the United States entered World War II, Roosevelt was on
more solid footing. Congress again delegated vast federal powers to the
president to help win the war, and Roosevelt created many new
administrative agencies to aid in the effort. There were very few
objections on constitutional grounds, largely because the three branches
assumed that the use of war powers by Lincoln and Wilson applied to the
current conflict. The Supreme Court never upheld challenges to the
authority of wartime agencies or to the authority of the 101 government
corporations created by Roosevelt to engage in production, insurance,
transportation, banking, housing, and other lines of business designed to
aid the war effort. The Court also upheld the power of the president to
apply sanctions to individuals, labor unions, and industries that refused
to comply with wartime guidelines. Even the case of the removal and
relocation of Japanese Americans was considered by the Supreme Court,
which ruled that, because Congress had ratified Roosevelt's
executive order as an emergency war measure, this joint action was
permitted.

The assertion of broad emergency powers by Presidents Wilson and Roosevelt
obfuscated the constitutional separation between Congress's
authority to declare war and the president's power to wage it. As
long as Congress delegated authority to the president and appropriated
funds (through its "power of the purse") to support such
powers, the judiciary would interpret this as congressional sanction of
the president's decision. The courts would not challenge this
"fusion" of the two branches' warmaking powers.

The onset of the Cold War did not result in a curb in executive war
powers. In 1950, President Harry Truman decided to commit U.S. forces to
help South Korea without a declaration of war from Congress. He based the
authority for his actions on the United Nations Security Council vote to
condemn North Korea's invasion and urge member countries to assist
South Korea. However, the Supreme Court ruled that President Truman went
too far when he ordered the secretary of commerce to seize and operate
most of the country's steel mills to prevent a nationwide strike of
steelworkers. The president justified his actions by arguing that the
strike would interrupt military production and cripple the war effort in
Korea and by claiming authority as commander in chief. In
Youngstown Sheet and Tube Company
v.
Sawyer
(1952), also known as the Steel Seizure Case, the Court agreed that the
president had overstepped constitutional bounds, but it did not rule out
the possibility that such seizures might be legal if done with the consent
of Congress. Nonetheless, the Steel Seizure Case is significant as the
strongest rebuke by the Court of unilateral presidential national security
authority. The country was at war when Truman acted, and Congress had not
expressly denied him the authority to act. It was extraordinary for the
Court to find that the president lacked authority under those
circumstances.

Thus, the Cold War environment did little to curb the gradual expansion of
presidential authority during war. In 1955, Congress authorized President
Dwight D. Eisenhower to use force if necessary to defend Taiwan if China
attacked the island. In 1962, President John F. Kennedy obtained a joint
congressional resolution authorizing him to use force if necessary to
prevent the spread of communism in the Western Hemisphere. Two years
later, Congress passed the Gulf of Tonkin Resolution, which empowered
President Lyndon B. Johnson to take all necessary steps, including the use
of armed force, to assist in the defense of members of the Southeast Asia
Collective Defense Treaty. President Johnson relied on this resolution to
wage the war in Vietnam instead of asking Congress to declare war on North
Vietnam. Federal courts were asked repeatedly during the late 1960s and
early 1970s to rule on the constitutionality of the war. The Supreme Court
declined to hear such cases on the view that war was a political question.
Although opponents of the war contended that U.S. involvement was
unconstitutional because Congress had never declared war, the legislative
body continued to appropriate funds for defense, thus implying support for
Johnson's, and then Richard Nixon's, policies in Southeast
Asia.